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Dismissed dependent contractors entitled to 26 months’ notice pay, rules Ontario Court of Appeal

The Ontario Court of Appeal has upheld a trial judge’s ruling that a husband and wife were entitled to 26 months each of pay in lieu of notice of termination.

At the time of dismissal, the Keenans were dependent contractors of Canac Kitchens, not employees. The couple had been the public face of the company for decades, but had been contractors since 1987. They had taken on a small amount of work for another company in the two years prior to their dismissal, with Canac Kitchens’ acquiescence. Justice Gillese held that the Keenans’ relationship to Canac Kitchens should be assessed over the length of the relationship. They remained dependent contractors and were entitled to notice despite their two years’ work for another company “on the side” of their work at Canac.

Further, Justice Gillese held that the notice period of 26 months was appropriate, although the trial judge did not explicitly find that extraordinary circumstances were present to justify such a large award of notice.

It is possible that, as “dependent contractor” jurisprudence develops, more features of the employer-employee relationship may be imported into dependent contractor relationships. For example, vicarious liability allows an employer to be held liable for tortious acts committed by their employee relating to the employee’s work. Can the “employer” of a dependent contractor be similarly liable? Look for courts to rule on this and other issues as contractor relationships become more common.

 

Nicholson Gluckstein Lawyers

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